Diamond International Corp. v. Boas

• Decision Date: 15 May 1979
• Citation: 92 Cal.App.3d 1015,155 Cal.Rptr. 616
• Court: California Court of Appeals Court of Appeals
• Parties: DIAMOND INTERNATIONAL CORPORATION, Plaintiff and Respondent, v. Roger BOAS, as Chief Administrative Officer of the City and County of San Francisco, Defendant and Appellant. Civ. 42273.

Page 616

155 Cal.Rptr. 616

92 Cal.App.3d 1015

DIAMOND INTERNATIONAL CORPORATION, Plaintiff and Respondent, v. Roger BOAS, as Chief Administrative Officer of the City and County of San Francisco, Defendant and Appellant.

Civ. 42273.

Court of Appeal, First District, Division 1, California.

May 15, 1979.

Hearing Denied July 20, 1979.

Thomas M. O'Connor, City Atty., Thomas A. Toomey, Jr., Chief Deputy, City Atty., Burk E. Delventhal, Deputy City Atty., San Francisco, for defendant and appellant.

McCutchen, Doyle, Brown & Enersen, David M. Balabanian, James L. Hunt, Donn P. Pickett, San Francisco, for plaintiff and respondent.

SIMS, ^* Associate Justice.

Appellant, the Chief Administrative Officer (hereinafter CAO) of the City and County of San Francisco, has appealed from a judgment awarding respondent, a New York corporation, the manufacturer of an approved punch card computerized voting system ¹ denominated "Datavote," a permanent injunction enjoining and restraining the CAO from interfering with the registrar of voters' selection of a computer voting system to be used in the city and county. ² The CAO contends that the function and personnel of the office of the registrar of voters were administered by a director of finance and records as part of the Department of Finance and Records which in turn was expressly placed under the control of the CAO by the city and county charter, ³ and that therefore he was fully authorized to countermand the selection of Datavote which had been made by the registrar.

Respondent claims that the plain meaning of other sections of the charter, particularly when viewed in the light of the judicial interpretation of similar provisions of an earlier charter, conclusively demonstrates that the registrar, as found by the trial court, had the exclusive authority to select a voting system. The resolution of these conflicting contentions is complicated because the adoption of a voting system involves not only the choice of the medium through which the voters are going to express their preference, i. e., ballot, machine, punch card, or other system, but also the selection and the requisitioning and purchase of particular equipment. From our examination of the charter and the relevant sections of the Elections Code, we conclude that the registrar does not have the exclusive right to assert a preference in either respect. The judgment must be reversed.

The matter came before the court on motions for summary judgment interposed by each of the parties. The parties stipulated at the hearing below that there are no triable issues of fact. The facts were developed through the exhibits to the complaint and the depositions, with accompanying exhibits, of the CAO and the registrar.

In May of 1976, the incumbent assumed the duties of Registrar of Voters-Recorder for the City and County of San Francisco. This is a civil service position that he obtained by competitive examination. Very early in his tenure he became aware of the pressing need for a new voting system. He conducted an extensive personal investigation of the available systems over a period of some six months. His conclusions were submitted in a report to the CAO dated March 25, 1977.

The strong preference of the registrar was for the Datavote system manufactured by respondent. The relative merits of the Datavote system and its competitor, the Votomatic, are not at issue; but the registrar calculated their respective total capital and lease purchase costs at $1,047,623 for Datavote, and $1,572,406 for Votomatic.

The appellant took office as the CAO on January 3, 1977. He was appointed by the mayor and confirmed by the board of supervisors. On taking office, he soon became aware of the registrar's study of voting systems. He did not pay very much attention to the registrar's report when it came to him. His concern about the registrar's competence, his belief that selection of the system was his responsibility, and city hall "paranoia" connected with inaccuracies in the count at a recent election led him to appoint a committee to independently consider the alternatives.

The committee, which contained representatives from the mayor's office, the board of supervisors, the city attorney, the League of Women Voters, the city purchaser, and an electronic data processing expert, met four times and unanimously recommended the Votomatic system. The CAO, having made no personal comparison, decided to accept the committee's recommendation, and reported it to the mayor and board of supervisors on April 15, 1977.

The registrar responded to the committee's considerations and reaffirmed his belief that Datavote was the better system in a memorandum to the CAO dated April 19, 1977. The committee met with the registrar to discuss his response on April 29, 1977, but did not change its recommendation.

A special election was planned for August 2, 1977, and the registrar submitted requisitions for the Datavote equipment. On May 5, he received a memorandum instigated by the CAO from the director of finance and records ordering him to requisition Votomatic instead. He complied.

On May 10, 1977, respondent filed its complaint for declaratory and injunctive relief against the CAO praying for the relief which was granted by the trial court. (See fn. 2 above.) The injunction was predicated upon the court's minute order reading as follows: "Plaintiff and Defendant stipulated in this court on July 20, 1977 that there are no triable issues of fact and that summary judgment is the appropriate and proper method of disposing of this action. (P) Plaintiff's motion for summary judgment is granted as to the first and second causes of action to the extent that this court declares that the Registrar of Voters for the City and County of San Francisco has the exclusive authority under Secs. 9.102 and 3.201 of the City Charter to select a voting machine system for the City and County in that the choice of a voting machine system is a matter pertaining to the conduct of elections, a subject matter under the exclusive authority of the Registrar of Voters. (P) A permanent injunction will issue as prayed for in the plaintiff's complaint. (P) Defendant's motion for summary judgment is denied. (P) Costs to plaintiff."

This appeal followed the entry of the permanent injunction.

Before examining the applicable charter provisions and precedents and their application to the foregoing facts, we pause to comment on the questionable nature of plaintiff's standing to sue, and the lack of parties to resolve all of the issues which the CAO and the respondent now seek to have adjudicated.

I

Appellant at one point in its brief states: "As will become clear below this case involves only the question of who has authority to make a selection of a voting system for San Francisco." He later distinguishes between the requisitioning process and the appropriation of money to make the purchase of the equipment. He states: "The instant case only deals with the requisitioning process." He suggests that the final decision is in the board of supervisors through its control of appropriations and because of provisions found in the Elections Code which appear to give the board of supervisors the authority to adopt a voting system. ⁴

Respondent also has acknowledged: "This case concerns the Selection of a voting system, not the Purchase of a system"; and "Thus, both sides agree, and have from the start, that the Board of Supervisors controls the purchase of a voting system." In respondent's original brief it agreed with the CAO that the state law (Elec.Code, § 15201, see fn. 4 above) gives the "governing board," and neither the CAO nor the registrar, the authority to adopt a voting system. Nevertheless it appears to claim that the board of supervisors can only "adopt" or reject a system selected by the registrar.

In view of that posture of the case each side was requested to comment on whether ultimate authority in the final analysis rests exclusively with the board of supervisors. The CAO persisted in his original analysis which suggested an affirmative answer. Respondent, however, furnished an analysis of the statutory history of the provisions noted above (see fn. 4), and principles of statutory construction which tend to support the view that the registrar, as successor to the former board of election commissioners, has the exclusive right to adopt or not adopt a voting system under the provisions of the Elections Code. It appears from the record and respondent's supplemental brief that the August 2, 1977 special election was held with Votomatic equipment secured through the requisition the registrar was ordered to execute. Following the trial court's judgment, elections in November 1977 and June 1978 were conducted with the respondent's Datavote system. Respondent asks us to take judicial notice that on July 24, 1978, the board of supervisors unanimously adopted a resolution selecting the Datavote system; that the mayor vetoed that resolution on August 4, 1978; that on September 11, 1978, the board by a vote of six to five reversed itself and adopted a resolution, approved the next day by the mayor, adopting the Votomatic system; and that on January 29, 1979, on reconsideration of the matter, the full board defeated a new resolution calling for the use of Datavote.

Although we released from Pandora's box the thorny problems inherent in a review of the propriety of the subsequent acts of the board of supervisors, we decline the invitation to pass on their legality. Neither the board of supervisors, the mayor, the registrar nor Votomatic is a party to this action. We have the city attorney and its chief administrative officer before the court, but we hesitate to consider the rights and obligations of the board, the mayor and the respondent's competitor vis-a-vis the registrar, except as they may be peripherally involved in the original dispute between the CAO and the respondent....